Defendant 5 and six others

Defendant 6 and two others

Kim Yong-ju

Attorney Choi Yong-young et al.

Changwon District Court Decision 2006 Ma41,50 (merged) and 53 (Consolidated Judgment) Decided July 14, 2006

1. The part of the lower judgment against Defendant 5, 7, 1, 2, and 3 shall be reversed, respectively.

Defendant 5, 7, and 2 shall be punished by a fine of 2 million won and by a fine of 1.5 million won, respectively.

In the event that the Defendants did not pay each fine, each of the above 50,000 won was converted into one day, the Defendants shall be confined to the Labor House.

As regards Defendant 5, among the detention days prior to the pronouncement of the lower judgment, 12 days, and as regards Defendants 7, 1, 2, and 3, one day each shall be included in the period of detention in the workhouse.

5 million won shall be additionally collected from Defendant 2.

2. The appeal filed by the defendant 6 and 4 and the prosecutor's appeal filed against the defendant 4 are dismissed, respectively.

1. Grounds for appeal;

A. Prosecutor's assertion of misapprehension of the legal principle (the scope of collection against Defendant 4)

Article 45 (3) of the Political Funds Act concerning the confiscation and collection of illegal political funds shall be interpreted as the provision of Article 45 (3) of the Political Funds Act regarding the illegal political funds that are received by Defendant 4 through a free loan of KRW 20 million from Co-Defendant 7 on October 28, 2005 without interest agreement.

Nevertheless, the court below rendered a decision of additional collection for KRW 468,493, which is the amount equivalent to the interest on the loan, rather than KRW 20,000,000, which is the money and goods provided for free loan. The court below erred by misapprehending the legal principles on additional collection under the Political Funds Act, which affected the conclusion of

B. Each assertion on unreasonable sentencing

(1) Defendant 6, 4

The sentence imposed by the court below on the above defendants (the 2-year suspended sentence and confiscation, the additional collection charge, and the 700,000 won and the additional collection charge to the defendant 4) are too unreasonable.

(2) Prosecutor (Defendant 5, 7, 1, 2, 3, and 4)

The sentence imposed by the court below on the above Defendants (the fine of KRW 700,000 for each of the above Defendants 5 and 1, the fine of KRW 500,00 for each of the Defendants 7 and 3, the fine of KRW 500,000 for each of the Defendant 2, the fine of KRW 500,000 for each of the Defendant 2, and the above sentence to Defendant 4)

2. Determination

A. As to the prosecutor's assertion of misapprehension of the legal principle

The necessary confiscation and collection pursuant to the provisions of Article 45 (3) of the Political Funds Act are the purpose of depriving anyone who violates the provisions of Article 45 (1) and (2) of the same Act of money, valuables and other property gains provided to him/her from them and preventing him/her from holding unjust profits. If he/she received a contribution of unjust political funds in violation of the provisions of Articles 45 (1), 3 (2) and 45 (1) and 3 (1) of the same Act by borrowing money and valuables without any agreement on interest without compensation, the amount equivalent to the financial profit on the borrowed money with no interest accrued to him/her. In this case, the subject of confiscation and collection as stipulated in the above Act is not the money and valuables borrowed but the amount equivalent to the above financial profit.

Therefore, the court below's decision to impose an additional collection on the above 468,493 won, which is the amount equivalent to the financial profit accrued from the loan without compensation, is just, and there is no error of law as alleged by the prosecutor.

B. As to each assertion of unfair sentencing

Although there are circumstances that the Defendants are in depth after the commission of the crime, Defendant 5 is up to 7 million won in total, and the number of crimes is up to 3 times. Defendant 6 is very heavy in quality of crimes such as providing money and goods from candidates for local election and arranging the contribution to the National Assembly members. Defendant 7 is about 2 times in the crime and the amount provided for the contribution is not less than 1.2 million won in total; Defendant 2 is up to 5 million won in the crime; Defendant 3 is deemed to have a close relation with the fair election in local election; Defendant 1 is deemed to have been sentenced to the punishment of Defendant 4,000 won in excess of 7,00 won in total; Defendant 4,000 won in consideration of the situation at the time of election and local circumstances; Defendant 1 is not only more likely to have been sentenced to a fine for each of the above crimes but also to have been sentenced to the punishment of Defendant 4,000 won in violation of the above Act.

3. Conclusion

Therefore, since the prosecutor's appeal against the defendant 5, 7, 1, 2, and 3 is well-grounded, each part of the judgment of the court below against the above defendants shall be reversed, and the appeal against the defendant 6, 4 and the prosecutor's appeal against the defendant 4 shall be dismissed, since they are without merit.

The summary of the facts charged and evidence against Defendant 5, 7, 1, 2, and 3 recognized by this Court is as stated in the corresponding column of the judgment below, and thus, this is cited.

1. Article applicable to criminal facts;

A. Defendant 5: Articles 257(1)1 and 113(1) (which made each contribution to Co-Defendant 1 in the constituency) of the Public Official Election Act, and Article 45(1) of the Political Funds Act (which made the contribution of political funds to Co-Defendant 1 in the original instance in a manner not provided for in the Political Funds Act)

B. Defendant 7: Articles 257(1)1 and 113(1) (a) of the Public Official Election Act (which means a donation to Co-Defendant 1 who is outside the constituency but has relations with the electorates) and Article 45(1) of the Political Funds Act (which means that the political funds are contributed to Co-Defendant 1 and Defendant 4 of the original judgment in a manner not specified in the Political Funds Act)

(c) Defendant 1: Articles 257(1)1 and 113(1) of the Public Official Election Act

(d) Defendant 2: Article 45(1) of the Political Funds Act

(e) Defendant 3: Articles 257(1)1 and 113(1) of the Public Official Election Act

2. Formal concurrence (Defendant 5);

Articles 40 and 50 of the Criminal Act (Article 3-2(b) of the Public Official Election Act, between violations of the Public Official Election Act, and between violations of the Political Funds Act, and punishment prescribed for violations of the Public Official Election Act with heavy severity of crimes

3. Selection of punishment;

Selection of each fine

4. Aggravation of concurrent crimes (defendants 5, 7, 1);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (as to Defendant 5, Article 3-2 (A) of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of Public Officials and the Punishment of Violations of the Act on the Election of

5. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

6. The inclusion of detention days before sentencing

Article 57 of the Criminal Code

7. Collection (defendant 2).

Article 45(3) of the Political Funds Act

Judges sexually written(Presiding Judge)(Presiding Justice)